Notaries in Italy

Notaries in Italy

This profession, is distinct from that of avvocato (lawyer) and is regulated by the Royal Decree of 10 September 1941 n. 1326.

Professional activities

Only Notaries can make public deeds and certify signatures every time that private Law is involved. This is the general rule. There are minor exceptions, concerning public officials who can perform certain deeds related to public purposes, and can therefore authorise a deed whenever the State is interested.

Publicity is forbidden by Law and by the “codice deontologico”, but in the future changes are likely to be announced.

Professional secrecy is imposed both by penal Law, private Law and also by disciplinary and ethic rules.

In Italy, notaries have no patrimonial role, and therefore they do not manage any assets. Incidentally, they can receive sums from their clients, but only for a very short period of time and for limited purposes.

Fees, as aforesaid, are determined by the National Board of Notaries and submitted to the Ministry’s approval.

There is no obligation of professional insurance, but the Consiglio Nazionale Notariato has already signed a national insurance scheme on a voluntary basis.

Professional specializations are not necessary, since every notary must be able to face every aspect of Law related to the professional activity required by clients.

Control Authorities

Following art. 127 of the Notarial Law, the Minister of Justice carries out “the high surveillance on Notaries, Boards and Notarial Archives and may order the inspections he thinks fit”. The same control functions are exercised by the Public Prosecutors.

In the first half of every two years (art. 128 Notarial Law), Notaries must take to the Notarial Archives, their registers and other inventories together with the notarial deeds they made during that period, which shall be inspected by the President of the Notarial Board together with the Director of the Notarial Archives. In any case, whenever he thinks fit, the Minister of Justice may order an extraordinary inspection.

Disciplinary sanctions to Notaries are inflicted in this way: lower ones by the Notarial Board and the higher ones by the Civil Tribunal. In every case it is possible to appeal against them.

We can see, then, that there are in Italy different authorities and different entities which play a role in the exercise and activities of the Notarial profession. We can conclude that there is a sort of balance of powers of a complicate but working device, which gives the assurance that Notaries – who are at the meantime public officers and free professionals – can play their part at the best and the highest level, so to make legal life possible and reliable.

Authentic Instruments

Following article 2699 of the Italian civil code, an authentic instrument is a deed drawn with the required formalities by a notary or by another public official authorised, in the place where it is drawn, to clothe such an instrument with public reliability. Article 2700 provides that, subject to an action to establish falsity, an authentic instrument constitutes full proof that it was drawn by the public official it represents as having drawn it, as well as of the declarations of the parties and of the other facts which the public official attests to have taken place in his presence or to have been performed by him.

As far as acts between privates are concerned, Italian law empowers only the notaries to accomplish them, with few exceptions that concern acts in favor of public entities. Nevertheless, also in those cases the administrative high Court (Consiglio di Stato 13 febbraio 1989, n. 79) says that whenever the deed involves high legal problems to solve, recourse to a notary is admitted.

Following the notarial law (art. 28), the notary is responsible for the legality both in the case of authentic instruments and of authentication of the signature of private deeds.

In the case of authentic instruments, the notary is the interpreter of the will of the parties who intervene in the deeds, whose will must be adapted to law by the notary.

Multidisciplinary Activities

The Law provides only for notarial associations, provided that the notary’s seal and his activity is strictly personal and so is his responsibility.

Recently, the Law that forbade every professional society (no matter which profession could be involved) has been abolished by the Law 7th August 1997, n. 266 and the government has been delegated to issue a decree which will discipline the subject, but what it will provide is still an open question.

Apart from companies and partnerships, Notaries can collaborate with every professional, provided that his professional activity remains strictly personal.

Entry requirements

In order to become a notaio the following steps are required (Law 16th February 1913, n. 89 and 6 August 1926, n. 1365):

  • to gain the university degree of doctor in jurisprudence and to complete a two year stage (with some exceptions). There are many Notarial Schools, organised by the Notarial District Boards. They do not issue diplomas or certificates and have only a private nature and function. They prepare candidates for the notarial examination;
  • to succeed in an electronically-organised examination based on the choice among multiple answers to single elementary legal questions; and
  • after that, it is necessary to succeed a national examination for the fixed number of positions of notaio (Notary). The examination is organised by the Ministry of Justice. The subsequent exam is based on three written tests (one about a inter vivos deed, another about a mortis causa deed and a third one about “juridiction gracieuse” (volontaria giurisdizione). Those who succeed the three written tests pass to the oral exam.

There is no mandatory continuing education. However, the National Board of Notaries, through its institutions, frequently promotes seminars and congresses about legal issues and releases studies about every matter that can be of interest to the notarial profession.

As far as his functions are concerned, the Italian Notary is the only public officer who can legally pass public deeds concerning private rights. A public deed is the only legal form for gifts, marriage conventions, public will, articles of association and incorporation of a recognised association, foundation, company limited by shares, company with limited responsibility, limited partnership by shares, cooperative. Besides that, it must be stressed that the access to public registers (immovable, ships, cars, enterprises) is possible only for public deeds or private deeds with authentication of the signature by a Notary.

Reserved activities

Professional titles

Advertising/Publicity

Client confidentiality/Professional privileges

Clients’ money

Fees

Accounting

Professional insurance

Specialist practitioners

Author: J Lonbay (A), 2008

Other Issues

Mobility

Notaries are covered by the general Directives on mutual recognition of diplomas, unless they can show that their activities are exempt under the Treaty exceptions to free movement to be found in Articles 39 (4) or 45 EC. They have argued for this exemption (exercise of official authority) to be applied to them. This is unlikely to be accepted now however as the European Commission reportedly (Law Society Gazette) has recently decided (November 2000) that notaries are not to be considered as immune from the effects of the free movement articles of the Treaty. Member States that do not remove the nationality requirement will face Article 226 enforcement action.

Legal Education before 1999

The law degree takes a minimum of four years study. The law student is required to pass at least 26 examinations , 14 compulsory and 12 optional subjects.

The compulsory subjects are:

  • Civil law
  • Administrative Law
  • Commercial law
  • Comparative Law
  • Constitutional Law
  • Labour Law
  • International and Community Law
  • Criminal Law
  • Civil Procedural Law
  • Criminal Procedural Law
  • Roman law
  • History of Law
  • Jurisprudence
  • Public Finances

The grade scale is on 0-30, 18 being the minimum pass mark. The final degree mark is calculated as a percentage between the number of the exams and the results obtained in each single exams.

Legal Education after 1999

The full law degree will, according to the draft decree, become a two stage process.

The first stage will comprise a three year license, much along the lines of the French maitrise model. Students need not continue on to the second stage, though they will have to if they wish to become avvocati, notiai, or judges

The second stage will lead to a laurea in giurisprudenza and will include the requirement of writing a thesis.

Legal Training

Governing Bodies

They are the Consiglio Nazionale dell’Ordine Forense and the Consiglio Nazionale del Notariato (C.N.N.).

Both national (Consiglio Nazionale del Notariato, National Board of Notaries) and local (Consigli Notarili Distrettuali, Notarial District Boards) associations are established by Law, and their members are elected democratically by the notaries themselves. The National Board of Notaries represents Notaries at a national level and has many functions, among them the proposal of the Notarial fee and the production of ethical rules. The Notarial District Boards holds the register of Notaries and has many functions concerning the regularity of the exercise of the profession.

The National Board of Italian Notaries (Consiglio Nazionale del Notariato, henceforth called C.N.N.) is a national representative entity of Italian Notaries, elected on a national basis. There are twenty members of the C.N.N. .

Following the Law 3rd August 1949, n. 577 (Creation of the National Board of Notaries and modifications to the rules about the administration of the Notaries National Retirement Fund (Cassa Nazionale del Notariato) modified by the Law 27th June 1991, n. 220, the C.N.N., whose headquarters are in Rome, is the Notaries National Guild (ordine).

The C.N.N., with a formal resolution, formulates the Notaries professional fees (honorarium, accessory rights, allowances and principles for reimbursement of expenses); this resolutions is submitted to the final approval of the Minister of Justice (Law 5th March 1973, n. 41).

The Board is in charge for a three year term and this expires when the newly elected members install themselves into office.

The Minister of Justice, after having verified that Law has been respected and when the results are definitive, proclaims the elected members and orders that their names be published on the Official Bulletin of the Italian Republic and in the Ministry’s Bulletin.

The C.N.N. auditing is done by an auditing board, formed by three active members and three substitutes, elected with the same procedure as for the C.N.N. from amongst the Notaries, with three electoral districts that include three areas of Italian territory.

The National Board of Italian Notaries has several commissions which, following the legal aims of the National Board, study the following issues: Private Law Commission, European Union Studies Commissions, Tax Law Commission, Historic Studies Commission, Legal Proposals Commission.

The C.N.N. used to send every day via e mail the legal news to the Notaries who had a reception device. Since 1st January 1999, the news is sent only by Intranet.

The C.N.N. has one of the most important Law libraries in Italy. Among its publications, it issues a magazine “C.N.N. Attività” and prints also all the studies made by its Private Law Commission.

Every year a National Congress is held, where usually there is a scientific theme concerning the legal topical questions. Each Congress adopts resolutions that are usually enforced during the following year by the C.N.N..

The C.N.N. is not a trade union; there is one (“FederNotai”), into the frame of the freedom of association.

Relevant Legislation

Royal Decree of 10 September 1941 n· 1326.

Author: J Lonbay (A), 2008

Other Legal Professionals

Lawyers

The object of the professional activity is the assistance and counselling in judgment and in any other circumstance out of judgment of any interested party. It may be performed by professionals entered into the register as an Avvocato. Information about lawyers in the European countries is provided here.

Bailiffs

A system akin to that in Portugal and Spain is used, whereby court officials are responsible for enforcement. Information about bailiffs in the European countries is provided here.

Notaries in other European Countries

Resources

Notes

See Also

Further Reading

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